[Introduced January 12, 2011; referred to the Committee on the
Judiciary.]

____________

A BILL to amend and reenact §62-12-5 and §62-12-26 of the Code of
West Virginia, 1931, as amended, all relating to probation and
parole; probation officers and assistants; and providing that
probation officers are authorized to supervise sex offenders
until a multijudicial officer is available in the probation
officer’s area.

Be it enacted by the Legislature of West Virginia:

That §62-12-5 and §62-12-26 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 12. PROBATION AND PAROLE.

§62-12-5. Probation officers and assistants.

(a) Each circuit court, subject to the approval of the Supreme
Court of Appeals and in accordance with its rules, is authorized to
appoint one or more probation officers and clerical assistants.

(b) The appointment of probation officers and clerical
assistants shall be in writing and entered on the order book of the
court by the judge making such appointment and a copy of said order
of appointment shall be delivered to the Administrative Director of
the Supreme Court of Appeals. The order of appointment shall state
the monthly salary, fixed by the judge and approved by the Supreme
Court of Appeals, to be paid to the probation officer or clerical
assistants so appointed.

(c) The salary of probation officers and clerical assistants
shall be paid monthly or semimonthly, as the Supreme Court of
Appeals by rule may direct and they shall be reimbursed for all
reasonable and necessary expenses actually incurred in the line of
duty in the field. The salary and expenses shall be paid by the
state from the judicial accounts thereof. The county commission
shall provide adequate office space for the probation officer and
his or her assistants to be approved by the appointing court. The
equipment and supplies as may be needed by the probation officer
and his or her assistants shall be provided by the state and the
cost thereof shall be charged against the judicial accounts of the
state.

(d) No judge may appoint any probation officer, assistant
probation officer or clerical assistant who is related to him or
her either by consanguinity or affinity.

(e) Subject to the approval of the Supreme Court of Appeals
and in accordance with its rules, a judge of a circuit court whose
circuit comprises more than one county may appoint a probation
officer and a clerical assistant in each county of the circuit or
may appoint the same persons to serve in these respective positions
in two or more counties in the circuit.

(f) Nothing contained in this section alters, modifies,
affects or supersedes the appointment or tenure of any probation
officer, medical assistant or psychiatric assistant appointed by
any court under any special act of the Legislature heretofore
enacted, and the salary or compensation of those persons shall
remain as specified in the most recent amendment of any special act
until changed by the court, with approval of the Supreme Court of
Appeals, by order entered of record, and any such salary or
compensation shall be paid out of the State Treasury.

(g) In order to carry out the probation responsibilities
relating to the supervision of sex offenders as well as those
responsibilities set forth in section twenty-six, article twelve,
chapter sixty-two of this code, the Administrative Director of the
Supreme Court of Appeals, or his or her designee, in accordance
with the court’s procedures, is authorized to hire multijudicial-circuit probation officers, to be employed through the court’s
Division of Probation Services.

(a) Notwithstanding any other provision of this code to the
contrary, any defendant convicted after the effective date of this
section of a violation of section twelve, article eight, chapter
sixty-one of this code or a felony violation of the provisions of
article eight-b, eight-c or eight-d of said chapter shall, as part
of the sentence imposed at final disposition, be required to serve,
in addition to any other penalty or condition imposed by the court,
a period of supervised release of up to fifty years: Provided,
That the period of supervised release imposed by the court pursuant
to this section for a defendant convicted after the effective date
of this section as amended and reenacted during the first
extraordinary session of the Legislature, 2006, of a violation of
section three or seven, article eight-b, chapter sixty-one of this
code and sentenced pursuant to section nine-a of said article,
shall be no less than ten years: Provided, however, That a
defendant designated after the effective date of this section as
amended and reenacted during the first extraordinary session of the
Legislature, 2006, as a sexually violent predator pursuant to the
provisions of section two-a, article twelve, chapter fifteen of
this code shall be subject, in addition to any other penalty or
condition imposed by the court, to supervised release for life:
Provided further, That pursuant to the provisions of subsection (g)
of this section, a court may modify, terminate or revoke any term
of supervised release imposed pursuant to subsection (a) of this
section.

(b) Any person required to be on supervised release for a
minimum term of ten years or for life pursuant to the provisos of
subsection (a) of this section also shall be further prohibited
from:

(1) Establishing a residence or accepting employment within
one thousand feet of a school or child care facility or within one
thousand feet of the residence of a victim or victims of any
sexually violent offenses for which the person was convicted;

(2) Establishing a residence or any other living accommodation
in a household in which a child under sixteen resides if the person
has been convicted of a sexually violent offense against a child,
unless the person is one of the following:

(I) The child’s parent;

(ii) The child’s grandparent; or

(iii) The child’s stepparent and the person was the stepparent
of the child prior to being convicted of a sexually violent
offense, the person’s parental rights to any children in the home
have not been terminated, the child is not a victim of a sexually
violent offense perpetrated by the person, and the court determines
that the person is not likely to cause harm to the child or
children with whom such person will reside: Provided, That nothing
in this subsection shall preclude a court from imposing residency
or employment restrictions as a condition of supervised release on
defendants other than those subject to the provision of this
subsection.

(c) The period of supervised release imposed by the provisions
of this section shall begin upon the expiration of any period of
probation, the expiration of any sentence of incarceration or the
expiration of any period of parole supervision imposed or required
of the person so convicted, whichever expires later.

(d) Any person sentenced to a period of supervised release
pursuant to the provisions of this section shall be supervised by
a multijudicial circuit probation officer, if available, until such
time as a multijudicial circuit probation officer is available, the
offender shall be supervised by the probation office of the
sentencing court or by the community corrections program
established in said circuit unless jurisdiction is transferred
elsewhere by order of the sentencing court.

(e) A defendant sentenced to a period of supervised release
shall be subject to any or all of the conditions applicable to a
person placed upon probation pursuant to the provisions of section
nine of this article: Provided, That any defendant sentenced to a
period of supervised release pursuant to this section shall be
required to participate in appropriate offender treatment programs
or counseling during the period of supervised release unless the
court deems the offender treatment programs or counseling to no
longer be appropriate or necessary and makes express findings in
support thereof.

Within ninety days of the effective date of this section as
amended and reenacted during the first extraordinary session of the
Legislature, 2006, the Secretary of the Department of Health and
Human Resources shall propose rules and emergency rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code establishing
qualifications for sex offender treatment programs and counselors
based on accepted treatment protocols among licensed mental health
professionals.

(f) The sentencing court may, based upon defendant's ability
to pay, impose a supervision fee to offset the cost of supervision.
Said fee shall not exceed $50 per month. Said fee may be modified
periodically based upon the defendant's ability to pay.

(g) Modification of conditions or revocation. -- The court
may:

(1) Terminate a term of supervised release and discharge the
defendant released at any time after the expiration of two years of
supervised release, pursuant to the provisions of the West Virginia
Rules of Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interests of justice;

(2) Extend a period of supervised release if less than the
maximum authorized period was previously imposed or modify, reduce
or enlarge the conditions of supervised release, at any time prior
to the expiration or termination of the term of supervised release,
consistent with the provisions of the West Virginia Rules of
Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;

(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of supervised
release without credit for time previously served on supervised
release if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by
clear and convincing evidence that the defendant violated a
condition of supervised release, except that a defendant whose term
is revoked under this subdivision may not be required to serve more
than the period of supervised release;

(4) Order the defendant to remain at his or her place of
residence during nonworking hours and, if the court so directs, to
have compliance monitored by telephone or electronic signaling
devices, except that an order under this paragraph may be imposed
only as an alternative to incarceration.

(h) Written statement of conditions. -- The court shall direct
that the probation officer provide the defendant with a written
statement at the defendant's sentencing hearing that sets forth all
the conditions to which the term of supervised release is subject
and that it is sufficiently clear and specific to serve as a guide
for the defendant's conduct and for such supervision as is
required.

(i) Supervised release following revocation. -- When a term of
supervised release is revoked and the defendant is required to
serve a term of imprisonment that is less than the maximum term of
supervised release authorized under subsection (a) of this section,
the court may include a requirement that the defendant be placed on
a term of supervised release after imprisonment. The length of
such term of supervised release shall not exceed the term of
supervised release authorized by this section less any term of
imprisonment that was imposed upon revocation of supervised
release.

(j) Delayed revocation. -- The power of the court to revoke a
term of supervised release for violation of a condition of
supervised release and to order the defendant to serve a term of
imprisonment and, subject to the limitations in subsection (i) of
this section, a further term of supervised release extends beyond
the expiration of the term of supervised release for any period
necessary for the adjudication of matters arising before its
expiration if, before its expiration, a warrant or summons has been
issued on the basis of an allegation of such a violation.

NOTE: The purpose of this bill is to clarify that probation
officers are authorized to supervise sex offenders until a
multijudicial officer is available in the probation officer’s area.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.